CONTRACT TERMS AND CONDITIONS
Data Center Computing Services
RFP #6100022698
Appendix A
Page iii of 105
TABLE OF CONTENTS
1. CONTRACT TERM 1
2. PURCHASE ORDERS 2
3. IDENTIFICATION NUMBER 3
4. ORDER OF PRECEDENCE, DEFINITIONS AND CONSTRUCTION 3
5. CONTRACT INTEGRATION 4
6. SERVICES 5
7. Equipment 8
8. THIRD PARTY SOFTWARE 9
9. DATA SECURITY 10
10. CONDUCT OF SERVICES 12
11. QUALITY ASSURANCE AND INTERNAL CONTROLS 13
12. SERVICE LOCATIONS 14
13. CONDITIONS OF CONTRACTOR’S OCCUPANCY OF COMMONWEALTH-PROVIDED REAL PROPERTY 17
14. TRANSITION 19
15. DISASTER RECOVERY AND BUSINESS CONTINUITY 23
16. PRIME Contractor RESPONSIBILITIES 25
17. KEY POSITIONS/CONTRACTOR PERSONNEL 25
18. THIRD PARTY SERVICES 27
19. COMPENSATION 28
20. FEES 28
21. PAYMENT SCHEDULE AND INVOICES 29
22. INSPECTION AND ACCEPTANCE 30
23. SERVICE LEVELS 31
24. LIQUIDATED DAMAGES 32
25. CONTINUOUS IMPROVEMENT AND BENCHMARKING 33
26. GOVERNANCE 36
27. CHANGE CONTROL 36
28. NOTICE OF DELAYS 38
29. NOTICE 38
30. DEFAULT 38
31. STEP-IN RIGHTS 41
32. TERMINATION 41
33. TERMINATION ASSISTANCE 45
34. CONTRACT CONTROVERSIES 52
35. COMMONWEALTH HELD HARMLESS 53
36. LIMITATION OF LIABILITY 53
37. CONFIDENTIALITY 55
38. SENSITIVE INFORMATION 58
39. PATENT, COPYRIGHT, TRADEMARK, AND TRADE SECRET PROTECTION 59
40. PROPRIETARY RIGHTS 62
41. PUBLICATION RIGHTS AND/OR COPYRIGHTS 65
42. REPORTS AND DATA 66
43. SECURITY AND PROTECTION OF INFORMATION 67
44. BACKGROUND CHECKS 68
45. INSURANCE 68
46. WARRANTIES 70
47. Contractor RESPONSIBILITY PROGRAM 72
48. OFFSET PROVISION FOR COMMONWEALTH CONTRACTS 73
49. TAXES-FEDERAL, STATE, AND LOCAL 73
50. POLICIES AND PROCEDURES 74
51. AUDIT OBLIGATIONS 74
52. VIRUS AND MALICIOUS CODE 77
53. THE AMERICANS WITH DISABILITIES ACT 78
54. NONDISCRIMINATION CLAUSE/SEXUAL HARASSMENT CLAUSE 78
55. Contractor INTEGRITY PROVISIONS 79
56. RIGHT-TO-KNOW LAW 85
57. ENVIRONMENTAL PROTECTION 87
58. ASSIGNABILITY 87
59. INDEPENDENT CAPACITY OF CONTRACTOR 88
60. THIRD PARTY BENEFICIARIES 88
61. CERTIFICATION REGARDING SUSPENSION 88
62. SUSPENSION OF SUBCONTRACTORS 88
63. ASSIGNMENT OF RIGHTS UNDER THE ANTITRUST LAWS 89
64. SIGNIFICANT EVENTS 89
65. FORCE MAJEURE 89
66. CONFLICT OF INTEREST 90
67. OFFICIALS NOT TO BENEFIT 90
68. CONSENTS, APPROVALS, NOTICES AND REQUESTS 90
69. REQUIRED CONSENTS 90
71. EXAMINATION OF RECORDS 91
72. SURVIVAL 92
73. SEVERABILITY 92
74. WAIVER 92
75. PERIOD OF PERFORMANCE 92
76. SPECIAL REQUIREMENTS 92
77. GOVERNING LAW 92
78. COMPLIANCE WITH LAWS 93
79. SMALL DIVERSE BUSINESS COMMITMENT 93
80. ACKNOWLEDGEMENT 93
81. COVENANT OF FURTHER ASSURANCES 94
82. COVENANT OF GOOD FAITH 94
83. AMENDMENTS 94
84. ENTIRE CONTRACT 94
APPENDIX A - BUSINESS ASSOCIATE APPENDIX LANGUAGE 1
Table of Schedules
Schedule A - Defined Terms
Schedule B - Governance
Schedule C – SERVICES CATALOG
Schedule D - Transition Milestones
SCHEDULE E – DATACENTER LOCATIONS
Schedule F – COPA DATACENTER STATEMENT OF WORK
Schedule G - Staffing Plan and Key Positions
SCHEDULE H - Commonwealth Computing Procedures Manual
Schedule I - Offeror Pricing Forms
Schedule J.1 - Service Level Management
Schedule J.2 - Datacenter Service Level Matrix
Schedule J.3 - Datacenter SLA Definitions
Schedule K - Key Program Deliverables
SCHEDULE L – APPROVED SUBCONTRACTORS
SCHEDULE M – DETAILED TRANSITION PLAN
Appendix A
Page iii of iii
TERMS AND CONDITIONS
1. CONTRACT TERM
(a) The term of the Contract shall commence on the Effective Date and shall end in seven (7) years (“the Expiration Date”), subject to the other provisions of the Contract. The Effective Date shall be: a) the date the Contract has been fully executed by the Contractor and by the Commonwealth and all approvals required by Commonwealth contracting procedures have been obtained or b) the date referenced in the Contract, whichever is later. The Contract shall not be a legally binding contract until after the fully-executed Contract has been sent to the Contractor.
(b) The Commonwealth may, in its sole discretion, renew the Contract for three (3) one (1) year periods, or any combination thereof, on the terms and conditions in force at the date of the renewal and utilizing pricing to be negotiated but consistent with and no less favorable than the pricing in force at the date of the renewal. Further, the Commonwealth reserves the right to extend this Contract or any part of this Contract up to three (3) months, or as necessary to prevent a lapse in Contract coverage.
(c) The Commonwealth reserves the right to execute the Contract, Purchase Orders or any follow-up Contract documents in ink or electronically. The Contractor understands and agrees that the receipt of an electronically-printed Contract with the printed name of the Commonwealth purchasing agent constitutes a valid, binding contract with the Commonwealth. The printed name of the purchasing agent on the Contract represents the signature of that individual who is authorized to bind the Commonwealth to the obligations contained in the Contract. The printed name also indicates that all approvals required by Commonwealth contracting procedures have been obtained.
(d) The Contractor shall not start performance, and the Commonwealth shall not be liable to pay the Contractor for any supply furnished or work performed or expenses incurred, until all of the following have occurred:
(1) The Effective Date has arrived;
(2) The Contractor has received a copy of the fully executed Contract (or written notice from the Commonwealth that the Contract has been fully executed); and
(3) The Contractor has received a Purchase Order or other written notice to proceed signed by the Commonwealth Contracting Officer.
No Commonwealth employee has the authority to verbally direct the commencement of any work or delivery of any supply under this Contract prior to the Effective Date.
2. PURCHASE ORDERS
(a) The Commonwealth may issue Purchase Orders against the Contract. These orders constitute the Contractor’s authority to make delivery. All Purchase Orders received by the Contractor up to and including the expiration date of the Contract are acceptable and must be performed in accordance with the Contract. Contractors are not permitted to accept Purchase Orders which require performance in excess of those performance time periods specified in the Contract. Each Purchase Order will be deemed to incorporate the terms and conditions set forth in the Contract.
(b) Purchase Orders will not include an ink signature by the Commonwealth. The electronically-printed name of the purchaser represents the signature of the individual who has the authority, on behalf of the Commonwealth, to authorize the Contractor to proceed.
(c) Purchase Orders may be issued electronically or through facsimile equipment. The electronic transmission of a purchase order shall require acknowledgement of receipt of the transmission by the Contractor.
(d) Contractor’s acknowledgment of receipt of the electronic or facsimile transmission of the Purchase Order shall constitute receipt of an order.
(e) Purchase Orders received by the Contractor after 4:00 p.m. will be considered received the following business day.
(f) The Commonwealth and the Contractor specifically agree as follows:
(1) No handwritten signature shall be required in order for the Contract or Purchase Order to be legally enforceable.
(2) Upon receipt of a Purchase Order, the Contractor shall promptly and properly transmit an acknowledgement in return. Any order which is issued electronically shall not give rise to any obligation to deliver on the part of the Contractor, or any obligation to receive and pay for delivered products on the part of the Commonwealth, unless and until the Commonwealth agency transmitting the order has properly received an acknowledgement.
(3) The parties agree that no writing shall be required in order to make the order legally binding. The parties hereby agree not to contest the validity or enforceability of the Contract or a genuine Purchase Order or acknowledgement that have been issued electronically under the provisions of a statute of frauds or any other applicable law relating to whether certain agreements shall be in writing and signed by the party bound thereby. The Contract and any genuine Purchase Order or acknowledgement issued electronically, if introduced as evidence on paper in any judicial, arbitration, mediation, or administrative proceedings, will be admissible as between the parties to the same extent and under the same conditions as other business records originated and maintained in documentary form. Neither party shall contest the admissibility of copies of the Contract or any genuine Purchase Order or acknowledgements under either the business records exception to the hearsay rule or the best evidence rule on the basis that the Contract or Purchase Order or acknowledgement were not in writing or signed by the parties. A Purchase Order or acknowledgment shall be deemed to be genuine for all purposes if it is transmitted to the location designated for such documents.
(4) Each party will immediately take steps to verify any document that appears to be obviously garbled in transmission or improperly formatted to include re-transmission of any such document if necessary.
(g) Purchase Orders under five thousand dollars ($5,000) in total amount may also be made using a Commonwealth Procurement VISA Card in person or by telephone. When an order is placed by telephone, the Commonwealth agency shall provide the agency name, employee name, credit card number, and expiration date of the card. The Contractor agrees to accept payment through the use of the Commonwealth Procurement VISA card.
3. IDENTIFICATION NUMBER
The Contractor must have a SAP Vendor Number.
4. ORDER OF PRECEDENCE, DEFINITIONS AND CONSTRUCTION
(a) If any conflicts or discrepancies should arise in the terms and conditions of this Contract, or the interpretation thereof, the order of precedence shall be:
(1) This Contract (first, the Contract, including the terms and conditions, second the Schedules and Appendices); then
(2) The Contractor’s Proposal (including the clarifications and the Best and Final Offer), as accepted by the Commonwealth; and then
(3) The RFP.
(b) Except as otherwise expressly provided in the Contract, all capitalized terms used in the Contract shall have the meanings set forth in Schedule A (Defined Terms).
(c) Interpretation:
(1) The terms defined in the Contract include the plural as well as the singular and the derivatives of such terms. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to the Contract as a whole and not to any particular Paragraph, Section, subsection or other subdivision. The words “include” and “including” shall not be construed as terms of limitation.
(2) Headings preceding the text of Paragraphs or Sections, and headings to Schedules and Appendices, the table of contents and the table of Schedules and Appendices included in or attached to the Contract are used for convenience only and are not to be considered in construing or interpreting the Contract.
(3) References to any law refer to such law in changed or supplemented form, or to a newly adopted law replacing a previous law.
(4) Except as may be expressly set forth herein, all references to time herein refer to Eastern Standard Time or Eastern Daylight Time, as applicable.
(d) The Contract includes each Schedule, Exhibit and Appendix referenced herein, all of which are incorporated into the Contract by this reference
5. CONTRACT INTEGRATION
(a) This Contract, including the Contract signature pages, together with the Contractor’s Proposal, the Contractor’s clarifications and the Contractor’s Best and Final Offer, and the RFP and addenda thereto that are incorporated herein by reference, constitutes the final, complete, and exclusive Contract between the parties containing all the terms and conditions agreed to by the parties.
(b) All representations, understandings, promises, and agreements pertaining to the subject matter of this Contract made prior to or at the time this Contract is executed are superseded by this Contract.
(c) There are no conditions precedent to the performance of this Contract except as expressly set forth herein.
(d) No contract terms or conditions are applicable to this Contract except as they are expressly set forth herein.
6. SERVICES
(a) The Contractor agrees to provide the Services to the Commonwealth as such services are defined in this Contract, the RFP and the Contractor’s Proposal, and in accordance with the terms of this Contract.
(b) The Contractor shall provide to Commonwealth the following Services pursuant to the terms of the Contract:
(1) Commencing as of the Effective Date, the Transition Services set forth in Section 14 (Transition) and Schedule D (Transition Milestones);
(2) Commencing as of the Effective Date and continuing until the Expiration Date:
(i) The services, function and responsibilities described in the Contract, including the Services set forth in (Services Catalog) and Schedule F (Statement of Work);
(ii) Any incidental services, functions or responsibilities not specifically described in the Contract, but which are inherent or required for the proper performance and delivery of the Services; and
(iii) The services, functions and responsibilities related to those categories of Services which Contractor is assuming pursuant to the Contract; and
(3) Commencing upon written notice by Commonwealth to Contractor in accordance with Section 33 (Termination Assistance).
(c) The services set forth in (1) through (3) above shall be collectively referenced as the “Services,” as they may evolve during the Term of the Contract or be supplemented, enhanced, modified or replaced pursuant to the terms hereof. The Services provided under this Contract are not exclusive to Contractor. The Commonwealth may in-source or re-procure any or all of the Services.
(d) The Commonwealth may request a change to the Services through a “Request for Services” to increase or decrease the amount of the Services provided under this Contract, according to Commonwealth's demand for the Services. The parties shall use the Change Control Procedures to implement the changes required by the Request for Services and revise the Fees as applicable.
(e) Except as may be necessary on an emergency basis to maintain the continuity of the Services or in the event of a declared disaster, Contractor shall not, without Commonwealth's written consent, modify (1) the composition of the Services, (2) the manner in which the Services are to be provided or delivered if such modification would have an adverse effect on the operations of Commonwealth, or (3) the applicable Services Levels.